KN v R

Court of Criminal Appeal (NSW)|2017-09-22|Before: Beazley ACJ, Walton J, Adams J

[This headnote is not to be read as part of the judgment] The applicant was indicted to stand trial on four counts of sexual offences relating to one complainant. On the first morning of trial, the Crown made an application for the complainant and a complaint witness to give evidence via audio visual link (AVL) from their residential addresses in foreign jurisdictions. The following day, the Crown informed the trial judge that it proposed to use the program "Jabber" for this purpose. The applicant opposed the application and applied for an adjournment of the trial. The trial judge refused the application and made an 'order' that the complainant and the complaint witness could give evidence via AVL as proposed. The applicant sought an order staying the trial pending determination of his application for leave to appeal pursuant to the Criminal Appeal Act 1912 (NSW), s 5F, which provides for an appeal against "an interlocutory judgment or order". He also sought orders refusing the Crown's application for the evidence of the complainant and the complaint witness to be heard by way of "Jabber" technology. The application was heard urgently. At the time of the hearing the jury had already been empanelled and the trial was due to continue that day. The Court held, refusing the application: (1) The essence of a court order is that it is a command to someone that a thing be done or not done and is enforceable by the court should there be non-compliance, including by way of contempt. [56] AF v R [2015] NSWCCA 35; Cheikho v R (2008) 75 NSWLR 323; [2008] NSWCCA 191; R v Bozatsis and Spanakakis (1997) 97 A Crim R 296; R v Steffan (1993) 30 NSWLR 633, applied (2) A court's acceptance that particular technology such as "Jabber" would be an appropriate and permissible means by which evidence may be given is not an "order". [57] (3) Subject to the requirements of the legislation, the decision to permit evidence to be given by AVL is a matter for the primary judge's discretion in the circumstances of a particular case. [66] ASIC v Rich [2004] NSWSC 467; 49 ACSR 578; Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601, cited (4) While it has sometimes been acknowledged that the question whether the credibility of the witness is in issue might be relevant to the decision to use AVL, there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL. It was apparent that the trial judge was satisfied that the jury could adequately assess the witnesses' evidence given by AVL. [67]-[68] ASIC v Rich [2004] NSWSC 467; 49 ACSR 578; Hughes v Whittens Group Pty Ltd [2017] NSWSC 329; Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601; R v Lodhi [2006] NSWSC 587; (2006) 163 A Crim R 488; R v Qaumi and Ors (No 9) [2016] NSWSC 171; R v Wilkie, R v Burroughs, R v Mainprize (2005) 193 FLR 291; [2005] NSWSC 794, cited (5) In circumstances where it is both the responsibility of and solely within the fiat of the trial judge to control the processes and procedures in the court so as to ensure there is a fair trial, there was no error in her Honour's acceptance that the taking of the evidence via AVL could be conducted using the Jabber program. [74] (6) The trial judge did not err in the exercise of her Honour's discretion in refusing the adjournment application and the applicant did not make out any other case for the grant of a temporary stay. [75]

Judgment

THE COURT: The applicant was indicted to stand trial on four counts of sexual offences relating to one complainant. His trial was listed in the District Court to commence on 18 September 2017. On the first morning of the trial, the Crown made an application for the complainant and a complaint witness to give evidence via peer-to-peer desktop AVL software, at their respective residential homes in foreign jurisdictions. The application was supported by the affidavit of the solicitor with the carriage of the matter in the office of the Director of Public Prosecutions. On 19 September, the Crown informed the trial judge that it proposed to use the program "Jabber" for this purpose.
The applicant opposed the application and also made an application for the adjournment of the trial. On 20 September 2017, the trial judge refused the applicant's application for an adjournment and made 'orders' that the complainant and the complaint witness could give evidence via AVL from remote locations in overseas jurisdictions pursuant to the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B.
By notice filed 21 September 2017, the applicant sought, inter alia, an order staying the trial pending determination of his application for leave to appeal pursuant to the Criminal Appeal Act 1912 (NSW), s 5F (the application for leave to appeal). The application for a stay was heard urgently by the Court on 22 September 2017. At this time the jury had already been empanelled and a witness, Dr Tran, was due to give evidence that afternoon and was not otherwise available to give evidence during the expected duration of the trial. After hearing argument, the Court refused the stay and reserved its reasons. The Court now gives it reasons for refusing the stay.

The application for leave to appeal

The Criminal Appeal Act, s 5F(3) provides for an appeal, with leave, to the Court of Criminal Appeal against an interlocutory judgment or order made in proceedings in, relevantly, the District Court.

Leave to appeal under s 5F

In Slotboom v R [2013] NSWCCA 18 this Court, at [6]-[7], confirmed the principles that apply in determining whether to grant leave to appeal under s 5F(3) as stated in Agius v R (2011) 80 NSWLR 486; [2011] NSWCCA 119 and in R v Alexandroaia (1995) 81 A Crim R 286.
In Agius, the Court said at [10]: "This Court has said that leave will only be granted where the decision which is the subject of the s 5F application is attended with sufficient doubt so as to warrant the matter being argued on appeal (R v Steffan (1993) 30 NSWLR 633 at 644-645), or where the interests of justice otherwise require the intervention of the Court at this stage of the proceedings (R v Matovski (1989) 15 NSWLR 720 at 723; R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42 at 48 [34]). The Court should bear in mind the undesirability of interrupting criminal proceedings by the bringing of a s 5F application: R v Einfeld [2008] NSWCCA 215; (2008) 71 NSWLR 31 at 37 [23]-[25]."
Where the application relates to the discretionary decision of a trial Judge refusing to adjourn a criminal trial the governing principle, as stated in Alexandroaia at 290, is as follows: "Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. An appeal based upon the judge's refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made." (citations omitted)
As is apparent from this passage, the relevant test is whether error has been demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40.
In his application for leave to appeal, the applicant, in addition to the order for a stay, sought the following orders: "2. An order refusing the application for the evidence of [the complainant] to be heard by way of 'Jabber' from her residential address on her personal computer in a foreign jurisdiction. 3. An order refusing the application for the evidence of [the complaint witness] to be heard by way of 'Jabber' from an unknown location on her personal computer in a foreign jurisdiction."
Six of the applicant's 14 proposed grounds of appeal were specifically directed to her Honour's 'order' relating to the use of the AVL technology, although these grounds also relate to the refusal of the adjournment. The other grounds were directed to the alleged errors in refusing the adjournment.

Temporary stay

Because the application before this Court on 22 September 2017 was only concerned with whether to grant a temporary stay pending the hearing of the applicant's application for leave to appeal, it is appropriate at the outset to refer to the principles governing the grant of a temporary stay. Those principles were summarised by Bathurst CJ, Hulme and Bellew JJ agreeing, in Macdonald v R; Maitland v R [2016] NSWCCA 306 at [140]: "It is well established that the Court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the Court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness: Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at 47. However, as was stated in X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57, a stay will only be granted to the extent necessary to relieve against unfair consequences: at [91]-[92], [114]; see also Redacted Judgment [2015] NSWCCA 281 at [108]-[110]."
In R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 at [128], Bathurst CJ, Fullerton and Bellew JJ agreeing, said: "The question of whether a temporary stay should be imposed arises if the court is of the view that it is inappropriate to grant a permanent stay but notwithstanding, some relief is necessary to ensure a fair trial." See also Subramaniam v R (2004) 211 ALR 1; [2004] HCA 51 at [24]-[27] (per curiam).

Trial judge's reasons

As indicated, her Honour was dealing with two applications. The first was an application that the complainant and the complaint witness give evidence via AVL from their homes overseas. The second was the applicant's application for an adjournment. The trial judge, at the commencement of her judgment, observed that the matter had been set down for trial at a directions hearing on 18 November 2016 and that the Crown had indicated, on 18 September 2017, that it was ready to proceed.
The grounds upon which the applicant sought to have the trial adjourned were identified by her Honour as follows: "1. The Court has no jurisdiction under s 294B of the Criminal Procedure Act 1986 to order that the complainant gives evidence by AVL facilities from Germany. 2. It was not in the interests of justice for [the complaint witness] to give evidence via AVL from a link in Austria as the defence did not have the material, being the contents of [the complaint witness'] phone, to cross-examine [the complaint witness]. Further, the defence did not have the opportunity to get material from either the complainant or [the complaint witness'] phone regarding conversations with the accused and between each other. 3. The defence had only recently been served with the statement of [G] relating to an alleged admission made by the accused. 4. The defence have not been provided with Cellebrite records relating to the accused's phone. 5. There was no statement from a person known as [YR]. 6. A subpoena served on the commissioner of police, on 8 September, was not adequately complied with. 7. The complainant's position in Germany put the accused at a disadvantage, as the defence wish to show a video of approximately 20 minutes and other documentation to the complainant in cross-examination and [counsel] questioned the ability of the Court to control the process. 8. The defence had not had access to the accused's camera or to the accused's phone."
Her Honour dealt with each basis of the adjournment application seriatim.
In relation to the first, second and seventh bases of the application, her Honour observed that the complainant was entitled to give evidence pursuant to the Criminal Procedure Act 1986 (NSW), s 294B, from a place other than the courtroom. Her Honour considered that as nothing in s 249B limited the location from which a complainant could give evidence, the evidence could be given from any place, including from outside Australia. Her Honour was of the opinion that pursuant to s 294B(3)(a), the evidence could be given via AVL.
Her Honour stated, in accordance with the statutory requirements of s 294B, that she was not satisfied that there were special reasons in the interests of justice for the complainant's evidence not to be given by means of AVL technology "from a place other than the courtroom". Her Honour was also of the opinion that the Evidence (Audio and Audio Visual Links) Act did not limit the availability of AVL facilities for witnesses outside New South Wales and Australia.
Having decided that the complainant's evidence could be given via AVL, it was necessary for her Honour to consider the applicant's opposition to the use of Jabber technology as proposed by the Crown. Her Honour had been informed that the Jabber programme had been tested for the purposes of its use in the trial.
Her Honour noted that the District Court had successfully used the Jabber program and stated that from enquiries she had made, she had been informed that the Jabber software accommodated the viewing of videos and documents on a computer screen in the remote location, that being one of the bases for the applicant's objection as to its use. Her Honour also stated that the system would have to be tested just prior to the complainant giving evidence.
Her Honour stated that if she was wrong as to the jurisdictional reach of s 294B, she was of the opinion that the court had jurisdiction pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act to order that a person may give evidence outside New South Wales, including a place outside Australia if the necessary facilities were available, provided the provisions of the section were satisfied and the court was satisfied that it was in the administration of justice to make an order in respect of the evidence of the complainant.
In determining that the evidence of the complainant and the complaint witness could be given via AVL, her Honour stated that she took into account any disadvantage to the accused, the public interest generally, the prosecution interest and the witness' interest. Her Honour noted that both the complainant and the complaint witness were young females who were not Australian citizens and who had both indicated they did not wish to return to Australia to give evidence.
Her Honour further stated that she had taken into account the nature of the trial, namely, a sexual assault trial, together with the cost of bringing witnesses to Australia and any delay which an adjournment might cause. In that regard, her Honour noted that if the trial did not proceed, the next available date would be July 2018. Her Honour also had regard to the fact that there was no power to compel the complainant or the complaint witness to travel to Australia to give evidence.
Her Honour stated that she had "weighed up" these matters in relation to any unfairness to the accused and had taken into account any disadvantages to which the technology may give rise in relation to the witnesses giving evidence via AVL. Her Honour's concluded view was the applicant would not get an unfair trial and that it was in the interests of justice that both the complainant and the complaint witness give evidence via AVL.
The third basis for the adjournment application related to the recent service of a witness statement in which it was alleged the applicant had made an admission. Her Honour considered that the question of the admissibility of the admission was not a reason for an adjournment and could be dealt with in the course of the trial.
The fourth basis related to the Crown's failure to provide the defence with Cellebrite records relating to the applicant's phone. Her Honour noted, however, that those records had been obtained and arrangements would be made for the defence to view them.
The fifth basis was a complaint as to the absence of a witness statement from YR. Her Honour found that YR was not a complaint witness and noted that the Crown had informed the court that it was for that reason that there was no statement from her. For that reason, her Honour considered that the absence of any statement from YR was no reason to grant an adjournment. Her Honour commented that if the defence considered YR to be an important witness in their case, they could make arrangements to have her give evidence.
The sixth basis related to the alleged inadequate response by the police to a subpoena. Her Honour noted that she had been informed that the subpoena had sought downloads of the complainant's and the complaint witness' phones, including all WhatsApp messages, and that those documents were not produced because they were not in existence.
As to the eighth basis upon which the adjournment application was made, her Honour noted that the officer-in-charge would assist the defence in accessing the applicant's camera and phone and that she would give the defence time to look at them.
Her Honour then dealt with further matters that had been raised in the course of argument. The first related to photographs referred to in the complainant's statement. Her Honour observed that it was not obvious from the statement that the photos had been taken on the complainant's phone and noted that the defence had only raised the matter that morning. It was for these reasons that the prosecution had not made any inquiries of the complainant about any photographs taken by the applicant on her phone.
Her Honour next dealt with the question of the translation of some text messages. Her Honour then returned to the use of the Jabber programme and the download from the Supreme Court website to the effect that the Supreme Court did not support its use. She observed, however, that the programme had been tested and was used in the District Court.
Her Honour rejected that it ought to have been part of the Crown investigative processes to have taken downloads of the entire contents of the phones of the complainant and the complaint witness and considered that the relevant screenshots had been obtained.
Her Honour saw no reason why the trial should not proceed and thus declined the application for the adjournment. Her Honour then stated: "I make orders that the complainant can give evidence via AVL from a remote location in Germany, and the [complaint witness] can give evidence from a remote location via AVL in Austria pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act."

Applicant's submissions

The applicant contended that her Honour erred in her interpretation of the Criminal Procedure Act, s 294B and, in particular, as to whether the section applied if evidence was to be taken outside Australia. The applicant further contended that her Honour erred in seeking to combine the provisions of s 294B and s 5B of the Evidence (Audio and Audio Visual Links) Act.
The applicant further submitted that the Jabber technology was not technology that enables "communication between [a place other than the courtroom] and the courtroom" within the meaning of s 294B, nor did it come within s 5B. According to the applicant, the Jabber technology did not fall within s 294B, as it was: "… 'peer-to-peer desktop AVL software' on the personal computer of the complainant, [to be used] without any supervision by the Court at the place where the complainant was to give evidence."
The applicant also submitted that the following matters were relevant to her Honour's discretion to make an order that the evidence be given by way of AVL and should have caused her to refuse the application. First, the application for the use of AVL facilities was only made on the first morning of the trial. Secondly, it was proposed that the evidence would be given from the personal computers of the complainant and the complaint witness. Thirdly, the technology to be used was Jabber, a peer-to-peer desktop AVL proprietary software. Next, it was intended that the evidence would be given from the respective homes of the complainant and the complaint witness, without the attendance of any governmental or other official. Finally, it was proposed that a support person might be present in the room with the complainant or the complaint witness when giving evidence. The applicant also submitted that the use of Jabber software was inappropriate in circumstances where the Supreme Court did not endorse the use of this particular software.
The applicant also complained that in opposing the use of the AVL facilities he had had to reveal part of his defence, and in particular, his proposed cross-examination of the complainant by reference to CCTV footage which indicated behaviour inconsistent with her allegations. The applicant also complained that the secrecy of his material to be used in cross-examination would be compromised under the orders made by the trial judge in circumstances where documents were to be forwarded to the complainant and the complaint witness on their personal emails.
The applicant made an added complaint that there was no process whereby there could be any guarantee that the court's jurisdiction was not being abused or misused and where there was no control of the privacy of the documents. Further, concern was expressed as to the capacity of the complainant and the complaint witness to give evidence in the early hours of the morning, given that it was expected that their evidence would take approximately a day. The applicant maintained his complaint about the late service of evidence, including the evidence of Dr Tran and the failure to investigate the whereabouts of YN. He also emphasised that the complainant's credit was in issue.
Another matter raised by the applicant was his contention that the Crown had not fully answered the subpoena that had been issued to the police. This included the failure to produce downloads from the phones of both the complainant and the complaint witness and a camera used by the complainant on the day after the alleged assaults.
The applicant informed the Court that in the course of argument before the trial judge in relation to the non-production of this material, it had been revealed that the phones had been returned to the complainant and the complaint witness, as had the camera, and that only a few snapshots had been downloaded, whereas, according to the applicant, numerous photographs had been taken on the complainant's camera and phone, after the conduct alleged in the indictment. This material had not been produced or attempted to be produced by the prosecution.
The applicant submitted that the consequence, if evidence was allowed to be given by AVL, would be that the jury could hear evidence from the complainant and the complaint witness in circumstances where the applicant was deprived of material upon which he would otherwise have sought to cross-examine. He also complained that he was forced to undergo his trial without the proper and usual disclosure of material. It was submitted that in all the circumstances, the trial judge had erred in allowing the trial to proceed.
The applicant submitted that it was the accumulation of all of these factors which meant that there was a potential that he would not have a fair trial.

Crown submissions

The Crown submitted that it was important to distinguish the two applications that were determined by her Honour. The first was an application by the Crown that the evidence of the complainant and the complaint witness be given by AVL using Jabber technology from their respective homes in Germany and Austria. The second application was the applicant's application for adjournment.
As to the first application, the Crown submitted that her Honour's 'order' that the evidence of the complainant and the complaint witness could be given from a remote location via AVL was not an interlocutory judgment or order within the meaning of the Criminal Appeal Act, s 5F in respect of which leave to appeal may be sought.
The Crown accepted that the refusal of an adjournment application was an interlocutory order within the meaning of the section. The Crown submitted that the question of the use of AVL facilities had not been the basis of the adjournment application. The Crown further submitted that it was necessary for the applicant to establish error in accordance with the principles in House v The King and that he had failed to do so.
The Crown submitted that as her Honour made the order for the use of AVL under the Evidence (Audio and Audio Visual Links) Act, s 5B, any issue in relation to the extra-territorial operation of the Criminal Procedure Act, s 294B fell away. Further, the Crown pointed to her Honour's comments that the AVL link would be tested immediately prior to the witnesses giving evidence. This was relevant, in the Crown's submission, as it was apparent that her Honour was at all times cognisant of the need to keep under review the trial processes so as to ensure the fairness of the trial.
The Crown also pointed out that during the course of the hearing of the application before the trial judge, the Crown had offered to ascertain whether there were alternative facilities whereby the evidence might be given, but that her Honour had decided to commit the evidence to be given from the homes of the two witnesses using the Jabber technology.
In response to the complaint that the applicant did not have access to the complainant's phone, the Crown submitted that the police had extracted what was relevant and served that upon the applicant. The Crown contended that it was a matter of mere speculation as to what other material was on the complainant's phone and to the extent that the applicant wished to test that matter, it could be the subject of cross-examination.
The Crown submitted that the late service of the statement of Dr Tran did not give rise to any prejudice. The applicant was aware from the prosecution's notice that had been served on him pursuant to the Criminal Procedure Act, s 142, that the Sexual Assault Investigation Kit (the SAIK kit) was to be tendered. The evidence of Dr Tran, who had taken the DNA swabs, related to early complaint and the continuity of the exhibit evidence and accordingly was not contentious. Dr Tran's evidence was not proposed to be relied on as medical evidence as to whether any sexual contact between the applicant and the complainant was consensual.

Determination

The application before the Court was for a temporary stay of a criminal trial that was about to commence in the District Court pending the determination of the applicant's application for leave to appeal pursuant to the Criminal Appeal Act, s 5F. The application for leave to appeal, by its terms, was directed to the trial judge's determination that the evidence of the complainant and the complaint witness could be taken via AVL using the Jabber program. In making that determination, her Honour first had regard to the Criminal Procedure Act, s 294B, but proceeded to make 'orders' under the Evidence (Audio and Audio Visual Links) Act, s 5B.
Pursuant to the Criminal Procedure Act, s 294B(3), a complainant in proceedings in respect of a prescribed sexual offence is entitled to give evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom. The court may order that such means not be used: s 294B(5), but only if the court is satisfied that there are special reasons in the interests of justice for the complainant not to give evidence by such means: s 294B(6).
The Evidence (Audio and Audio Visual Links) Act, s 5B(1) provides that a New South Wales court may: "… direct that a person … give evidence … by … audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting."
There is merit in the Crown's submission that her Honour's 'order' made under s 5B(1) that the evidence could be given by AVL is not an "interlocutory judgment or order" within the meaning of s 5F(3). There is no definition of "judgment" or "order" in the Act. However, in R v Steffan (1993) 30 NSWLR 633, at 636, this Court stated that a "judgment" is "the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court". An "order" is "a command by a court that something be done (or not done)".
In Steffan, the Court expressed doubt as to whether a ruling on the admissibility of evidence was a judgment or order within the Criminal Appeal Act, s 5F. In Cheikho v R (2008) 75 NSWLR 323; [2008] NSWCCA 191, Spigelman CJ, with whom Barr and Fullerton JJ agreed, stated the matter more emphatically, at [22], referring to Steffan as part of a line of well-established authority that a ruling on the admissibility of evidence was not a judgment or order within s 5F.
In R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303, Gleeson CJ, with whom Meagher JA and Bruce J agreed, explained: "One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it."
In AF v R [2015] NSWCCA 35, the primary judge had declared that the complainant was a "vulnerable person" within the meaning of s 306M of the Criminal Procedure Act 1986 (NSW) and ruled that the complainant's evidence be given by means of the playing of a recording of her police interview. Justice Hulme, with whom Hoeben CJ at CL and Harrison J agreed, said at [32] that: "The ruling … is not concerned with the admissibility of evidence but with the manner in which evidence may be given. However, it has very much the same character as a procedural matter that does not finally dispose of any discrete part of the proceedings. It was not a judgment or order in the sense identified in R v Steffan (1993) 30 NSWLR 633 at 636 … It may be contrasted with the decision in [R v RAG [2006] NSWCCA 343] that a complainant was not competent to give unsworn evidence. The effect of that decision was that the complainant could not give evidence at all; it was a decision which had the effect that something not be done."
The same may be said of the court permitting or authorising particular technology for taking evidence via AVL, which is the subject of the orders sought by the applicant in his application for leave to appeal. Indeed, the position in this regard is even more so. As the Court stated in Steffan, an "order" is a command that something be done or not done. However, an order is not merely a command that something be done or not done. The very essence of a court order is that it is a command to someone that a thing be done or not done and is enforceable by the Court should there be non-compliance, including by way of contempt.
These observations lead directly to the further problem in the manner in which the applicant has framed his application for leave to appeal. One of the principle complaints relates to the proposed use of Jabber technology. The terms of her Honour's orders are set out above at [32]. Those 'orders', as her Honour called them, were that the two witnesses could give evidence from a remote location via AVL. Her Honour did not make any order in respect of the use of the Jabber technology, although it is clear that her Honour considered that the use of Jabber technology would be appropriate and that she would permit it to be used for the purpose of taking evidence via AVL, as she had ordered. However, a court's acceptance that particular technology such as Jabber would be an appropriate and permissible means by which evidence may be given is a far cry from "a command that something be done or not done" and enforceable by the court should there be non-compliance.
The view we have expressed is supported, if not confirmed, by the language of s 5B of the Evidence (Audio and Audio Visual Links) Act. The section provides that the court "may … direct that a person … give evidence … by … audio visual link". This is to be contrasted with, for example, the language of s 15(a), which provides that a recognised Court "may, by order … direct that the proceeding, or a part of the proceeding, be conducted in private". Section 16 provides that an order made under s 15 "must be complied with" and "may be enforced". There is no such enforcement provision which relates to a direction made under s 5B.
It is also likely that the use of the language of "direct" in s 5B reflects an understanding by the legislature of the fundamental proposition that the control of court processes is in the hands of the court as constituted by the judge allocated to hear the matter.
For the same reasons, even if the applicant's application for leave to appeal should or could be treated as relating to the 'orders' that the witnesses' evidence could be given by AVL, the Court is of the opinion that such orders do not fall within s 5F(3) of the Criminal Appeal Act.
Given that her Honour ordered, or, more correctly, directed the use of AVL pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act, it is not necessary to consider whether her Honour erred in the interpretation of s 294B of the Criminal Procedure Act, nor is it clear as to what was intended by that argument. Presumably it was directed to the extra-territoriality of the provision. However, it is not irrelevant to observe that a complainant giving evidence in proceedings to which s 294B applies has an entitlement to give evidence from a place other than a courtroom. If exercised, that entitlement requires that some form of AVL be used. It would be unusual if the means by which a statutory entitlement was implemented, in this case, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act, could then be the subject of an interlocutory appeal process.
Given that the better view is that neither a direction or 'order' made under s 5B of the Evidence (Audio and Audio Visual Links) Act nor a permission or direction that Jabber technology be used is an interlocutory order or judgment within s 5F(3) of the Criminal Appeal Act, the prospects of leave to appeal being granted and orders made in terms of proposed orders 2 and 3 of the application for leave to appeal are slight in the extreme.
That being so, it is difficult to see that a temporary stay ought to be granted "to prevent an injustice" and "to avoid unfairness" on the basis of the use of such technology, unless some inherent unfairness is identified. As we understand the applicant's case, there was such unfairness, having regard to the various complaints he made that should have led to his adjournment application being granted. As indicated, a significant aspect of that application focussed upon the proposed use of Jabber, including that the witnesses would give evidence from home without an 'official' person being in attendance such that the court could not ensure that it had control of its own processes.
It was at the forefront of the applicant's submission that Jabber technology was not endorsed by the Supreme Court. However, that argument can be put aside entirely. The technical difficulties with the use of Jabber in the Supreme Court building do not apply in the District Court located in the Downing Centre. As her Honour commented, the technology has been successfully used by the District Court.
The applicant made other complaints which appeared to be directed to the unsuitability of the use of AVL at all. These included the fact that it was proposed that the interpreter was to be located in the court room and that this case would significantly turn on the credit of the complainant and the complaint witness. It is not apparent that any complaint was made in respect of the interpreter to the trial judge, but in any event, it is not apparent or obvious as to why that should have been relevant to an adjournment application.
The point made in relation to assessing the credibility of the witnesses must also be rejected. The use of AVL for the purposes of taking evidence is well-established and there is a substantial body of authority on the exercise of the court's discretion to permit its use for that purpose. As the cases make clear, subject to the requirements of the legislation, the decision to permit evidence to be given by AVL is a matter for the primary judge's discretion in the circumstances of a particular case: see Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601 at [11] per Gordon J; ASIC v Rich [2004] NSWSC 467; 49 ACSR 578 at [16] per Austin J.
While it has sometimes been acknowledged that the question whether the credibility of the witness is in issue might be relevant to the decision to use AVL: see Kirby v Centro Properties Limited at [10]; ASIC v Rich at [27]-[28] and the cases cited therein; R v Qaumi and Ors (No 9) [2016] NSWSC 171 at [9] per Hamill J and Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 at [21] per Button J, there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL: see ASIC v Rich at [24]-[26]; R v Wilkie, R v Burroughs, R v Mainprize (2005) 193 FLR 291; [2005] NSWSC 794 at [31]-[32] per Howie J; R v Lodhi [2006] NSWSC 587; (2006) 163 A Crim R 488 at [65] per Whealy J and the cases cited therein.
It is apparent that, notwithstanding that credibility is in issue and the testimony of the complainant and the complainant witness is of central importance to the case and is expected to be of substantial duration, her Honour was satisfied that the jury could adequately assess the witnesses' evidence given by AVL. It is perhaps worth noting that there was nothing in her Honour's rulings or her reasons to indicate that her Honour would not manage the trial in such a way so as to ensure that the applicant would have a fair trial.
Other complaints related to anticipated cross-examination of the complainant on documents, which were, presumably, the text messages, as well as on certain video footage. However, her Honour was satisfied from her enquiries that this could be accommodated on the Jabber technology.
Another significant matter, on the applicant's submission, was the unavailability of downloads from the complainant's phone and camera or of the phone of the complaint witness, despite numerous requests to the police that it be obtained. In this regard, although a small number of downloads had been produced, the applicant's concern was the phone and camera should have been available or at the least enquiries as to their availability should have been made. However, her Honour dealt with the question of whether photos had been taken on the applicant's phone or on the complainant's phone. She observed that it was not apparent from the complainant's statement that the photos were on her phone and that the suggestion that the photos were on the complainant's phone had only been raised on the first morning of the trial. To the extent that the applicant contended that her Honour made no mention of the complainant's camera, that must be considered to be a minor oversight, and not an omission of such a nature to amount to House v The King error. It is apparent from her Honour's judgment that she was well apprised of the nature and extent of the applicant's complaints.
Other matters of complaint related to the late service of evidence. This was directed in particular to the evidence of Dr Tran, who was only available on the afternoon of 22 September and then would not be available for two weeks, by which time, presumably, the trial would have ended. However, as explained, the evidence of Dr Tran went to early complaint and continuity of exhibits. It was not evidence of a kind in respect of which an accused might wish to obtain evidence in response. The applicant's complaint about the late service of a statement of a witness, YR, to whom he was said to have made an admission was also dealt with by her Honour as being a matter for cross-examination. The complaint about the Cellebrite downloads from the applicant's phone had also become academic, as they were provided on the afternoon of 20 September, although it should be observed that this did appear to be exceptionally late.
The remaining and larger question was whether there could be a fair trial in circumstances where there evidence would be given without the presence of a court officer or other independent person to ensure that the court processes would not be compromised in any way. In this regard, the applicant referred to the "Criminal Trial Courts Bench Book: Remote Witness Facilities Operational Guidelines". The guidelines set out the procedures recommended for taking evidence remotely. None refer to the presence of a court officer.
However, in the notes to the guideline, there is reference, in note 4, to court staff having set up the facilities in readiness for the hearing, and that when the court is ready to take the evidence for the witness, the court officer in the remote witness room should select the appropriate court on the control panel on the side of the remote witness cabinet. There is a further reference in note 6 to the court officer being present at all times in the remote witness room "so they will be aware at all times of what is happening in the remote witness room and can report to the court at any time as necessary".
This note would appear to be mainly directed to dealing with technical issues and potentially with issues relating to witness fatigue. However, they are guidelines only, and in circumstances where it is both the responsibility of and solely within the fiat of the trial judge to control the processes and procedures in the court so as to ensure there is a fair trial, there was no error in her Honour's acceptance that the taking of the evidence via AVL could be conducted using the Jabber program.
In the Court's opinion, her Honour did not err in the exercise of her discretion in refusing the adjournment application and the applicant has not made out any other case for the grant of a temporary stay.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2017

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